Is this conservative judicial activism?

With many of this administration’s policies or pronouncements, it’s hard to know whether they’re based on ignorance or cynicism. But given President Barack Obama’s background as an instructor in on constitutional law and his heretofore expansive views of the federal judiciary’s jurisdiction, his recent comments on the Supreme Court are most likely the latter.

With Obama’s almost religious attachment to “Obamacare,” it’s safe to conclude that he’ll do almost anything to preserve what he has labeled his “signature achievement.”

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These remarks are the president’s second high-profile attack on the Supreme Court. Remember his State of the Union invective against the justices for their Citizens United decision, which narrowed the government’s ability to restrict money in politics. With many of the justices present, Obama decried that the decision allowed foreign corporations to spend money “without limits” on U.S. elections – which was not true, by the way. Imagine the outrage if a Republican president had criticized, say, Roe v. Wade in a similar manner.

In another life, Obama had been a strong proponent of courts going beyond the constitutional restraints on state and federal power (“negative liberty”) and favored an interpretation based on “what the federal government or state government must do on your behalf.”

Contrast that with his comments on Monday that “an unelected group of people would somehow overturn a duly constituted and passed law.” The constant in both views is not constitutional analysis, but the worst results-oriented jurisprudence.

Obama alleged that the court would be guilty of “judicial activism” if it struck down “Obamacare.” He specifically called out “conservative commentators” who have made the same charge in other cases.

Conservatives, however, have criticized “judicial activism” where judges resorted to novel legal theories to invalidate acts passed mostly by state legislatures. Hence the well-deserved criticisms of federal judges who have taken to running local schools and mandating tax increases in the name of equal educational opportunity. Or how about judicial rulings that mandated busing of school children in the name of forcing integration rather than just eradicating state sponsored segregation?

The worst case of all in this vein was Roe v. Wade that struck down state laws limiting abortions based on “emanations and penumbras” found in unknown corners of the Bill of Rights. Conservatives rightly complained of overreaching federal judicial power v. the states and noted that social engineering and good intentions were often the real bases of such decisions.

By contrast, the legal challenge to “Obamacare” is based on settled constitutional doctrine. First, this challenges a federal statute, not a state law. States have general police powers, Congress does not.